Deepak Anand vs State & Anr

On 17.01.2014, the wife of the second respondent was found dead inside the bed room of suite no. 345 at Hotel Leela Palace, New Delhi. The

Station House Officer of police station Sarojini Nagar, New Delhi registered first information report (FIR) no. 64/2015 on 06.01.2015 and took up

investigation into offences punishable under Sections 306 and 498A of Indian Penal Code, 1860 (IPC) in such context. Â The police having carried out

investigation submitted its final report (charge-sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in the court of

Metropolitan Magistrate on 14.05.2018. The Magistrate is stated to have taken cognizance on the said charge-sheet and issued summons to the

second respondent in exercise of the power vested in the said court by Section 204 Cr.P.C., statedly for the offence under Section 306 IPC.

Against the backdrop of above facts, the second respondent moved an application (Bail application no. 873/2018) in the court of sessions, praying

for anticipatory bail under Section 438 Cr.P.C. The said court, by its order dated 05.07.2018, granted the said prayer and directed that in the event of

he being arrested by the police or at the instance of the Metropolitan Magistrate on his appearance before the said court, he shall be released on bail

subject to he furnishing bail bonds in terms which have been specified and subject to conditions that have been added including inhibition against

leaving India without prior permission of the concerned court.

The petitioner, a practicing advocate, having no connection whatsoever with the afore-mentioned case, has approached this Court by the present

petition seeking cancellation of the aforesaid order of anticipatory bail, invoking the inherent power and jurisdiction of this Court under Section 439 (2)

read with Section 482 Cr.P.C., his verbal submissions being that as a vigilant citizen of this country he is entitled to raise issue of impropriety on the

part of the court of sessions in granting such relief to the second accused against the backdrop of summoning order that had been passed by the

competent court of criminal jurisdiction. Primarily, his argument is that the power to grant anticipatory bail, can be exercised only in a case where a

person apprehends arrest by the police, the possibility of a person summoned by the Magistrate’s Court as accused being taken in custody not

being covered by such jurisdiction under Section 438 Cr.P.C.

The second respondent has entered appearance through counsel, on his own. Both he and the respondent State question the locus standi of the

petitioner to bring the petition at hand, it also being argued that the exercise of the power to grant anticipatory bail by the court of sessions through the

impugned order is covered by decisions, inter alia, of the Supreme Court.

Having heard all sides at length and having gone through the relevant law on the subject, even if the issue of locus standi of the petitioner were to

be kept aside, this Court finds no merit in the submissions of the petitioner attributing impropriety to the court of sessions in grant of relief to the

second respondent by order dated 05.07.2018.

The question as to whether the court vested with the power to grant anticipatory bail in terms of Section 438 Cr.P.C. can exercise such jurisdiction

against the backdrop of order of the court of cognizance issuing process is not res integra. A division bench of this court, as far back as in November,

1996 by its judgment reported as P.V. Narsimha Rao &Anr. vs. State (CBI) 1997 SCC Online Delhi 19 had answered a reference on precisely the

same question of law contrary to what is being canvassed by the petitioner. Pertinent to note that in that case also the petitioner had come up to this

Court for grant of anticipatory bail in the wake of summons issued by court of Magistrate against him. The division bench, answering the reference

made by a learned single judge had, inter alia, observed that a person against whom accusations of cognizable and non-bailable offence have been

made may apprehend arrest by the police or arrest even at the hands of the court. It was noted that the language used in Section 438 Cr.P.C. is clear

and unambiguous namely “reason to believe that he may be arrested on accusationâ€. The court while considering the prayer under Section 438

Cr.P.C. goes by the merits of the case and not by the nature of order passed by the Magistrate choosing to summon the accused through bailable or

non-bailable warrant. It was also noted that Section 438 (3) Cr.P.C. contemplates a situation where the arrest may be apprehended at the instance of

the court and, thus, mandates that if such order of cognizance is passed and the Magistrate decides that a warrant should be issued at his instance,

such warrant would have to be a bailable warrant in conformity with the direction of the court under Section 438 (1) Cr.P.C. Â

The rulings of the Supreme Court in Bharat Chaudhary &Anr. vs. State of Bihar &Anr. (2003) 8 SCC 77 and Ravindra Saxena vs. State of

Rajasthan (2010) 1 SCC 684 are sufficient to be quoted as illustration of the law being settled contrary to what is being argued by the petitioner.

The petition, thus, is found to be wholly devoid of substance.

The same and the application filed therewith are dismissed.